Central Administrative Tribunal - Delhi
R. C. Sehgal vs Union Of India on 14 May, 2010
Central Administrative Tribunal Principal Bench OA No.2146/2009 New Delhi, this the 14th day of May, 2010 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) R. C. Sehgal S/o Late B. C. Sehgal R/o C-3/3117, Vasant Kunj, New Delhi 110 070. Applicant (By Advocate : Shri L. R. Khatana) Versus 1. Union of India Through Secretary to the Government of India, Ministry of Defence, South Block, New Delhi 110 011. 2. The Engineer-in-Chief Military Engineer Services, Engineer-in-Chiefs Branch, Army Headquarters, Kashmir House, Rajaji Marg, New Delhi 110 011. Respondents (By Advocate : Sh. R. N. Singh) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri R. C. Sehgal, retired Chief Engineer (AF), the Applicant herein, is visiting this Tribunal for the second time. He impugns (i) the Memorandum dated 25.5.2006 (Annexure-A2) by which disciplinary proceedings were initiated against him at the time he was expecting his promotion from the post of Chief Engineer to the grade of Additional Director General; (ii) Inquiry Officers Report dated 20.2.2007 (Annexure-A3), and (iii) order dated 24.10.2008 (Annexure-A1) issued by the Disciplinary Authority by which penalty of a monthly cut of 5% in the pension of the Applicant was imposed for a period of one year. Being aggrieved by the above action of the Respondents, the Applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers :
(A) That the respondents be directed to produce the relevant records pertaining to the initiation of the impugned disciplinary proceedings and imposition of the impugned penalty for the perusal of this Honble Tribunal.
(B) That the impugned orders be held as illegal, arbitrary, perverse and discriminatory and be quashed and set aside and the respondents be directed to give all the consequential benefits of (i) promotion with effect from 1.1.2006, as per the note given in the select panel prepared by the duly constituted DPC and also directed by the Honble High Court in its Order dated 17.11.2006 but the actual promotion denied due to the impugned disciplinary proceedings together with arrears of pay allowances; (ii) revise the retrial benefit including pension and pay the arrears thereof; (iii) reimburse the amount of pension recovered (if any) because of the impugned penalty; and (iv) pay interest at the rate of 12% on all the consequential benefits including the retrial benefits, within the prescribed time frame.
(C) Award costs.
(D) Pass any such other or further order or direction as this Honble Tribunal may deem fit and proper in the facts and circumstances of this case.
2. We may briefly state the facts of the case which led to the imposition of the penalty on the Applicant and which would be relevant for determination of the issues raised in the OA. The Applicant joined the Military Engineering Service (MES) as Assistant Executive Engineer selected through the examination conducted by UPSC in 1969, and was promoted to the post of Executive Engineer in 1982, Superintending Engineer in 1990, Additional Chief Engineer in 1998. He was promoted to the post of Chief Engineer (CE) on 02.02.2001. It is the case of the Applicant that on 31.3.2005, the Applicant was empanelled along with 3 others for promotion to the next higher post of Additional Director General (ADG)- he was in the 2nd position of the extended panel and was to be promoted to the post of ADG on 01.01.2006 consequent to the retirement of Shri Narender Kumar on 31.12.2005. It is stated that on an anonymous complaint, Central Vigilance Commission (CVC) permitted investigation of the same in June 2005 which was completed by 1.10.2005. While the promotion and posting of the Applicant was submitted to the Ministry of Defence on 14.10.2005, a decision was taken by the Engineer-in-Chief on 26.10.2005 to initiate disciplinary proceedings against the Applicant. As a result, a Show Cause Notice dated 4.1.2006 (Page-57) was issued to the Applicant who submitted his detailed reply vide his letter dated 10.1.2006 (Pages 58-63) in which he denied the lapses and stated that the lapses were vague and pertained to the period February 2001 to October 2003 and it would not be possible to recollect all the facts and events of that period. Subsequently in March 2006, he filed OA No.750 of 2006 praying to direct the Respondents to promote him to the grade of ADG. This Tribunal allowed the OA mainly on the ground that on the due date for filling up the vacancy of ADG by promotion, the Applicant was neither under suspension nor facing any departmental/criminal charges, and, therefore, directed the Respondents to promote the Applicant. The Tribunal order was challenged by the Respondents before the Honble High Court of Delhi in WP(C) No.10541-43/2006 which was decided on 17.11.2006 by quashing the order of the Tribunal on the ground that the Para 7 of the DOPT OM dated 14.9.1992 would be applicable in the Applicants case where the recommendation of the DPC would be deemed to have been placed in a sealed cover. As a result of the sealed cover of the said recommendation of the DPC, the Applicant could not be promoted till his retirement on 31.7.2006. The departmental proceedings culminated in the imposition of punishment vide order dated 24.10.2008 (Annexure-A1) in which a monthly cut of 5% in the pension of the Applicant for a period of one year was ordered by the President under the CCS (Pension) Rules 1972. Inter alia assailing the said order the Applicant is before the Tribunal in the present OA.
3. Shri L. R. Khatana, learned Counsel for the Applicant highlighting the unblemished and excellent career of the Applicant, submitted that on the verge of his promotion to the post of ADG, and on the basis of an anonymous complaint, the disciplinary proceeding was initiated. He contended that the Applicant performed his duties keeping in view the urgent operational requirement of the Air Force authorities. The non-compliance of the said proposal could have, on the contrary, been termed / alleged to be a lapse in discharge of his functions. He drew our attention to the letter dated 28.9.2001 received from the Air Force for the road works and footpaths to be carried out on priority as an urgent operational needs and the said was to be done against the works sanctioned dated 7.3.1997. His contention was that such contingencies are covered by Para 10 of RMES and such no misconduct could be attributed to the Applicant. Shri Khatana submitted that Para 10 of RMES was misinterpreted and misconstrued in order to harass and humiliate the Applicant at the fag end of his service career which ultimately denied his legitimate promotion to the post of ADG. He referred to the definition of Contingency and Contingent from P. Ramanatha Aiyars The Law Lexicon to submit that contingent is a situation in which an event may happen or may not happen. By such a connotation, he contends, the Applicants decision was fairly covered by the contingency arising in the middle of the project. Referring to the audit observations, Shri Khatana contended that those were incorrect inasmuch as the audit observed that the Applicant made delegation in November 2001 after 17 months of completion of the Project whereas the facts were that Project was completed on 20.11.2002. The audit observation was replied by the Applicant in his letter dated 24.6.2002 and no audit para had been raised which, Shri Khatana submitted, would mean no misconduct had arisen as the audit seemed to have accepted the said reply. It was contended by Shri Khatana that Air Force was the end user of the Project for which the MES was service provider and the contingent works in the Project demanded by the Air Force and provided by the MES needed to be appreciated. In this context, he referred to the Annexure-15 to state that the Preface to the Standing Orders issued on 22.5.1995 by the Engineer in Chief envisaged that the orders were to be interpreted and applied intelligently keeping in view the public interest. In respect of the punishment of 5% cut in pension imposed on the Applicant, Shri Khatana submitted that the charge framed against him did not appear to be prima facie grave or serious and as such punishment imposed on him is illegal and irrational. He also contended that the Disciplinary Authority did not take into account overall situation in which the Applicant exercised his power of delegation and such an action by the Disciplinary Authority is not rational in the eyes of law and in support of his contention he relied on the judgment of Honble Supreme Court in M. S. Bindra Versus Union of India [1998-7-SCC-310]. Another contention raised by Shri Khatana was on the issue as to whether the decision taken by the Applicant, in which he had not committed any irregularity, did not receive any pecuniary benefit, could be termed as misconduct. Relying on our judgment where Justice Mr. V. K. Bali, Chairman, authored the judgment, in G. P. Sewatia versus Union of India and another [OA No.2210 of 2006 decided on 27.8.2008] he submitted that as per the interpretations of misconduct outlined in the order, the action of the Applicant could not be termed as misconduct. Shri Khatana further advanced the argument that the Applicant acted in the best interest of the user Air Force and no ulterior, or corrupt motives were attributed to him, and inasmuch as there was no malafide intention on the part of the Applicant, imposition of a penalty meant for grave misconduct by the Disciplinary Authority would be travesty of justice. He, therefore, pleaded that not only the penalty should be quashed but also the Respondents should be directed to promote the Applicant as ADG from the date his junior was promoted.
4. Per contra, the learned Counsel for the Respondents, Shri R. N. Singh, very vehemently opposed Shri Khatanas contentions. He submitted that there were adequate evidence against the Applicant as per the report of the Inquiry Officer and the competent authority had passed the penalty order in accordance with relevant Rules and as per law. Violation of the Para 10 of RMES is a grave misconduct for which the appropriate punishment has been imposed as per CCS (Pension) Rule and CCS (CCA) Rules. It was also contended that non-conversion of audit observation into audit para did not justify the Applicants misconduct. He also submitted that additional delegated items by the Applicant were beyond his scope and power of sanction, and the projection of any additional needs of the users would not become contingent to the Project. His contentions were that the delegation by the Applicant being violation of RMES, and the relevant materials on record having been examined, the competent authority took decision on the charges and decided the quantum of punishment and as such the penalty was appropriate and proportionate to the proved misconduct. He argued that the OA should be dismissed.
5. We have given careful considerations to the contentions raised by the rival parties and have perused the pleadings and relied on case laws. The main issue that comes before us for our determination is - Whether the allegation held as proved misconduct is grave enough to impose punishment of cut in pension? If not, is the Applicant entitled to get the promotion to the next higher grade of ADG?
6. We may now examine the components of the charge, some of which were ultimately held as proved or partly proved by the Inquiry Authority (IA). The following 4 lapses were identified by the Disciplinary Authority against the Applicant while conveying him the only Article of charge vide Memorandum dated 25.5.2006 (Annexure-A2) :-
(i) That, Shri RC Sehgal circumvented the payment of rental and electricity charges of Officers Mess Guest Room No.3, which was under his occupation, as the charges of the aforesaid guest room were not levied/paid fully for the period of occupation, but levied/paid intermittently w.e.f. February 2001 to July 2002, and though Room Nos. 4 & 5 were also allotted to Shri RC Sehgal, charges were levied/paid only for one room i.e. Room No.3 w.e.f. July 2002 to Dec. 2003.
(ii) That, Shri RC Sehgal illegally drew House Rent Allowance and kept Guest Rooms Nos.3, 4 & 5 under his occupation, despite allotment of Government accommodation to him, immediately on his arrival, and four time subsequently.
(iii) That, Shri RC Sehgal with his personal persuasion got special repairs work sanctioned illegally/wrongly for Guest Room No.3 of Officers Mess from Hqr. SWAC i.e., Air Force Authorities, although the subject building is a property under the maintenance charge of the Army Authorities; and during such repair work, Shri R. C. Sehgal remained a mute spectator when Guest Rooms Nos. 4 & 5 were modified and merged with Guest Room No.3 without any proper authority, obviously because he was the beneficiary of such a merger/work in view of the fact that Room Nos. 3,4 & 5 were allotted to the same occupant i.e. Shri R. C. Sehgal w.e.f. 26th June 2002 to Dec. 2003.
(iv) That, Shri RC Sehgal, wrongly and injudiciously, delegated funds to the tune of around Rs.45 lakhs from savings, to Commander Works Engineer, Air force, Bhuj, for a road work, which was in violation of provision of para 10 of RMES, 1968 and was subsequently, also criticized by the Audit authorities.
7. Out of the above 4 lapses, though the IA held lapse (i) as not proved, the lapse (ii) and (iii) as partly proved and lapse (iv) as proved, the Disciplinary Authority held the lapse (iv) against the Applicant and imposed the punishment. During the hearing, both the parties have referred more often to the statement of imputation of misconduct in support of and against the article of charge framed against the Applicant only in respect of lapse (iv). For better appreciation of the issues, which we would discuss later, we extract the statement of the imputations of misconduct of misbehaviour in support of the lapse (iv) of the article of charge framed against Applicant, which reads as follows:-
whereas, Shri RC Sehgal, wrongly and injudiciously, delegated funds to the tune of around Rs.45 lakhs from savings, to CWE AF, Bhuj for a road work for which the amount originally available was only Rs.7 lakhs. This delegation was done from savings available under provisions meant for OTM/Tech Accommodation for Pechora Squadron at Jamnagar. The delegation was made by CE (AF) Ahmedabad (Shri RC Sehgal) after 17 months of completion of the said project vide Note no.26106/E2-Planning dated 6th Nov 2001 (Appx.H). This was in violation of provision of para 10 of RMES 1968, which stipulates that additional works out of savings cannot be sanctioned. Objections to it were also raised by the Audit authorities during test check (Appx.I).
Thus, the said Shri RC Sehgal committed gross misconduct in that he misused his official power and position as CE AF Ahmedabad and Chairman of the Officers Mess for his own benefit and failed to protect the interest of the Government in the discharge of his duties. He thus failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Govt. servant, and thereby contravened provisions of Rule 3 (1) (ii) & (iii) of CCS (Conduct) Rules, 1964.
8. As the Applicant denied the charge, inquiry was ordered. Shri Samir Sahai of the CVC was appointed as the Inquiry Authority (IA) vide order dated 26.10.2006 to inquire into the charges framed against the Applicant. He held the inquiry on 27.11.2006, 11.1.2007, 16.1.2007 and 17.1.2007 and on receipt of the written briefs from Presenting Officer and the defence statement from the Applicant; the IA submitted Inquiry Report dated 20.2.2007 (Annexure-A3). The following is the concluding part of IAs report:
It is seen from the above that the work of road which was not envisaged in the main contract was executed considering the same as an extension of existing road works of the main contract within the overall estimate of the project and no excess amount over and above the sanctioned estimate was spent on the work sanctioned as contingent work to the main project. The Para 10 of RMES (D-26) clearly states that any anticipated or actual savings must not be applied to carry out additional work not contemplated in the approved project or which is not fairly contingent upon its actual execution without the sanction of the competent authority. The work executed from the savings of the Project was a construction of a road not included in the main contract of the Project and was later demanded by the Air Force Authorities for the movement of their equipments like Radar etc. The proposal of this work was submitted by the CWD (AF) Bhuj to the CE (AF) i.e. the CO and the CO gave the approval on the note-sheet clearly mentioning the work of Rs.45 lakh as an additional work (Ex.S-7). The DW-1 who was the CWE (AF) Bhuj at the time of submission of the proposal to the CO has also stated during cross-examination that the reasons for not including this road work in main contract cannot be furnished as the main contract was done prior to his joining as CWE (AF) Bhuj. This shows that the main contract should have included this road work. It is established that the Project was completed in 2002 as mentioned in completion report (Ex.D-25) and the report of CWE (AF) Bhuj dated 09.03.2001 (Ex D-23) is related to the completion of work by M/s Lotus Construction. It has been established that the CO gave the approval of Rs.45 lakh road work as an additional work and the contention of the CO that he did not allow any additional new work has no relevance in view of the provisions of Para 10 of RMES as there is no category of additional new work. It has been proved that the CO violated the provisions of Para 10 of RMES and wrongly delegated funds to the tune of Rs.45 lakh for additional road work. Therefore, the charge against the CO has been found as Proved.
Findings:
Article of charge-I(i) : Not proved.
Article of charge-I(ii): Partly Proved Article of charge-I(iii): Partly Proved Article of charge-I(iv): Proved.
9. On receipt of the enquiry report, the Applicant submitted his representation on 14.11.2007 where he denied the charges. The Competent Disciplinary Authority, after considering the charge, IAs report and the Applicants representation and in consultation with CVC, passed the final order dated 24.10.2008 (Annexure-A1) and the operative part is reproduced below:
AND WHEREAS the President, who is the Disciplinary Authority in the case, after careful consideration of the IOs Report, the submissions made by the said Shri RC Sehgal, ex-CE(AF), Ahmedabad and the facts and circumstances of the case, has arrived at the conclusion that the officer is guilty of gross misconduct in that Art.1(iv) of the charge pertaining to violation of the provision of para 10 of RMES has been proved as he had wrongly delegated funds for a work which was not forming part of the main sanctioned work, and therefore, the President is of the view that a monthly cut of 5% in the pension of the officer for a period of one year only, would be justified.
NOW, THEREFORE, the President hereby orders for the aforesaid cut in the pension of the said Shri RC Sehgal, ex-CE(AF), Ahmedabad, accordingly.
10. Before we may analyse the facts on the touch stone of the settled position on law, we may delve first on the definition of misconduct and what constitutes misconduct to determine the issue. In Union of India Versus Harjeet Singh Sandhu [(2001) 5 SCC 593] in the background of Rule 14 of the Army Rules, it was held that any wrongful act or any act of delinquency which may or may not involve moral turpitude would be misconduct under Rule 14. In Baldev Singh Gandhi Versus State of Punjab [(2002) 3 SCC 667] it was held that the expression misconduct means unlawful behaviour, misfeasance, wrong conduct, misdemeanour, etc. Further in State of Punjab Vs. Ram Singh Ex. Constable [(1992) 4 SCC 54] it was held that the term misconduct may involve moral turpitude. It must be improper or wrong behaviour, unlawful behaviour, willful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. In M.M. Malhotra case (supra) the Honble Apex Court dealing with Misconduct cited definition as stated in Batts Law of Master and Servant (4th Edition at Page 63) comprised positive acts and not mere neglects or failures. The definition of the word as given in Ballentines Law Dictionary (148th Edition) means a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness. We also refer to our judgment in G. P. Sewatia versus Union of India and another [OA No.2210 of 2006 decided on 27.8.2008] where one of us [Justice Mr. V. K. Bali, Chairman], authored the judgment wherein the interpretations of misconduct has been cited. We are also guided by the above connotations of the term misconduct . In State of Punjab case (supra), it was stated :
Misconduct has been defined in Blacks Law Dictionary, Sixth Edition at page 999, thus :
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Misconduct in office has been defined as :
Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.
11. In P. Ramanatha Aiyars Law Lexicon, 3rd edition, at page 3027, the term misconduct has been defined as under :
The term misconduct implies, a wrongful intention, and not a mere error of judgment.
Misconduct is not necessarily the same thing as conduct involving moral turpitude.
The word misconduct is a relative term, and has to be construed with reference to the subject matter and the contest wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. {We refer to the Honourable Supreme Court judgment in Bharat Petroleum Corpn. Ltd. Vs. T.K. Raju, [2006 (3) SCC 143]}
11. In catena of judgments Honble Supreme Court has laid the law in the subject of what constitute misconduct. In M.M. Malhotra Versus Union of India [2005-8-SCC-351] it was observed that the conduct rules of the Government are code of guidance with permissible acts and behaviour of their employees and Conduct Rules have a set of general rules on conduct of the employees with specific prohibitions and restrictions. For example, the Central Civil Services (Conduct) Rules, 1964 has under the heading General which provides that every government servant shall at all times (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for Government to exhaustively enumerate such acts and treat the categories of misconduct. Thus the word misconduct is not capable of precise definition. But at the same time though incapable of precise definition, the word misconduct on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be constructed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve. Honble Supreme Court in a case referred to it under Article 317(1) of the Constitution of India. Reference 1 of 2003 decided by a 4 Member Bench on 10.11.2008 observed that the scope of the term misconduct implies some degree of mens rea meaning thereby there is willful commission of irregular/illegal act like corruption, lack of integrity, persistent failure to perform duties, an offence involving moral turpitude. There are some of the instances cited as misconduct. But every act or conduct does not amount to misconduct. It was also held that error of judgment or negligence per se does not amount to misconduct.
12. The penalty order reveals that the Disciplinary Authority has held only one part of the charge, Charge 1(iv) as proved misconduct. The said part of the Article of charge relates to the allegation identified in the audit observation about the injudicious use of delegated powers by the Applicant which referred to the delegation allowed in November 2001 to CWE(AF) Bhuj to accord technical sanction and accept contracts for the work Road / Path / culverts amounting to Rs.45 lakhs available as savings under the said project. Accordingly the CWE (AF) Bhuj issued a technical sanction on 21-12-2001 for the said work for Rs.43.06 lakh. Audit noticed that the project sanctioned by Govt. of India, cited in the delegation issued by the Applicant under No.Air HQrs./S-36102/224/ W(SWAC)/493/D(Air I dtd.7/3/97, relating to works / services for provision of OTM / Tech Accommodation for Peehora Squadron at Jamnagar was completed under Contract Agreement No.C/(AF)A/Jamnagar/10 of 1999-2000 on 25 May 2000 as reported by CWE(AF) Bhuj to CDA SC Pune, under its letter No.89392/592/E8 dated 09.03.2001, while seeking release of excess amount of retention money to the contractor. In this backdrop the Audit raised the question of executing further works of road/path/culverts/under the project under item 5(a) of Administrative Approval for Rs.71.97 lakh, and utilizing available savings under the project, and was objected on the ground that said delegation was irregular. Further, the delegation made by the Applicant in November 2001, i.e. after 17 months of the completion of project in May 2000 was considered by the audit as violation of Para 10 of RMES, and sought the cancellation of such delegation.
13. Before we go into the RMES provision and other aspects of the case, it is noted that the said lapse is based on two factual errors crept into the audit observation. The 1st error is in respect of the amount of Rs.7 lakhs originally available for a road work for which the Applicant wrongly and injudiciously, delegated funds to the tune of around Rs.45 lakhs from savings, to CWE AF, Bhuj. The reply to audit para given by the Applicant vide his letter dated 24.6.2002 (page 93) while in service reveals that through corrigendum dated 26.101999 the road work increased from Rs.35.99lakh to Rs.71.97lakh. This means, the original amount for road works was Rs.35.99lakh, not Rs.7lakh. This is also corroborated from the statement available at page 41of the paper book. The 2nd error relates to the presumptive statement that the delegation was made by the Applicant in November 2001, i.e. after 17 months of the completion of project in May 2000. This was clarified that the works under CA CE(AF) Abd/Jaa/10/98-99 were completed on 25.5.2000 but the works under CA CE(AF) Abd/Jaa/10/99-00 were completed on 15th June 2001 and some works were completed in August 2001.
14. The main part of the alleged lapse (iv) is the violation of Para 10 RMES. That being so, we take the extract of Para 10 of RMES, which envisages the following :-
Nothing in these rules maybe construed as permitting officers to carry out in portions any group of works, or alterations, or to make purchases of which the cost in the aggregate exceeds their powers of sanction under the rules. The authority granted by a sanction to a service covers only the precise objects to which sanction has been given. Any anticipated or actual savings must not be applied to carry out additional work not contemplated in the approved project, or which is not fairly contingent upon its actual execution, without the sanction of the competent authority.
15. The RMES prohibits additional work not contemplated in the approved project or which is not fairly contingent upon its actual execution. The Counsel for the Applicant advanced the argument that the road works sanctioned was not an additional work as the same was authorized / demanded by the client authority for movement of radars to the border areas. Moreover, he contended that the said road work was based on the contingency to the Project and by sanctioning the same, the Applicant used his discretion correctly and this should not be termed as misconduct. We note that the delegation of powers in service parlance and functional domain is meant for faster and timely work execution. Such delegation exercised by the Applicant on the request/demand placed by the client and processed right up to him hierarchically through some responsible subordinates, the Applicant has applied his discretion and sanctioned by using the delegated power. Discretion is the better part of valour, is very axiomatically applicable in this case. If he would not have sanctioned, he could have been hauled up for (a) not meeting the needs of the authority in the border area of the country, and (b) allowing saving in the concerned head of the works.
16. The Counsel for the Applicant drew our attention to the phrase contingent upon its actual execution, in the RMES to submit that the work sanctioned by the Applicant was contingent upon the approved Project and the Project had mentioned the works under the heading Road/paths and funds in the form of savings were available for the work. The road work was requested by the client to be executed and the said was contingent upon the Project. The Applicant did not include on his own but when the proposal of the user organization was placed before him through proper examination of the physical needs of the work and availability of funds in the savings by his subordinates, he did it. Shri Khatana referred to the meaning of Contingent and Contingency from The New Shorter Oxford English Dictionary Volume 1 appearing in Page 494. The same is extracted below :
Contingent : be in connection or in contact,.of uncertain occurrence; liable to happen or not. Not predetermined by necessity Contingency : The quality or condition being contingent; uncertainty of occurrence.A thing dependent on an uncertain event. A thing that may happen at a later time.
We find that there is some force in the argument of Shri Khatana that contingent work like the one the Applicant has authorised under his delegation of powers, may arise in the course of the execution of the Project. Such a contingent situation may be posed either by those executing the Project or for those the Project benefit will accrue. In the present case, the contingent work was posed by the client and processed by the officials concurred and the Applicant approved the same. Taking into account the above definitional aspect, we opine that the sanction accorded by the Applicant gets covered under the clause contingent upon the actual execution of the Project and thus did not violate Para 10 of RMES. We are, therefore of the firm opinion that the Applicant has acted as the contingency arose due to clients demand and properly used the savings for the purpose and delegated.
17. We may analyse the issue whether the President could have invoked the Rule 9(i) of the CCS(Pension) Rules 1972 for imposing the penalty of a monthly cut of 5% in the pension of the officer for a period of one year only for alleged misconduct of wrongly delegating funds for a work which was not forming part of the main sanctioned work and whether such a punishment is justifiable? This question leads us to the issue of pension. An employee holding a civil post under the Union of India has a legitimate right to earn his pension after retirement. It is not a bounty of the State. In D. S. Nakara Versus Union of India (AIR 1983 SC 130), the Constitution Bench of the Honble Supreme Court held that pension is not only compensation for loyal service rendered in the past, but also by the broader significance it is a social welfare measure rendering socio-economic justice by providing economic security. It is a sort of stipend provided in consideration of past service or emoluments to one retired from service. Hence, pension is earned by rendering long and efficient service. It is also further observed that pension as a retirement benefit is in consonance with and furtherance of the goals of the Constitution. The goals for which pension is paid themselves give a fillip and push to the policy of setting up a welfare State. Therefore, when a Government employee is sought to be deprived of his pensionary right whether part or full, whether for a short or long period, whether temporarily or permanently, when he had earned while rendering services under the State, such a deprivation must be in accordance with law.
18. It is relevant to extract the instructions of the Government vide MFUD No.D2776/E.V/52 dated the 8th May 1959(taken from Swamy's Pension Compilation, 2002 Edition), which provides thus:
"Pensions are not in the nature of reward but there is a binding obligation on Government which can be claimed as a right. Their forfeiture is only on resignation, removal or dismissal from service. After a pension is sanctioned its continuance depends on future good conduct, but it cannot be stopped or reduced for other reasons."
19. Further, the Rule 9(l) of the CCS (Pension) Rules provides thus:
"The President reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if, in any departmental of judicial Proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon reemployment after retirement.
Provided that the Union Public Service Commission shall be consulted before any final orders are passed.
Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of rupees three hundred and seventy five. From the above Rule, it is evident that the President reserves to himself the right to withhold or withdraw the whole pension or a part thereof, whether permanently or for specified period, if in the departmental enquiry or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. Rule 8(5), explanation (b) of the CCS (Pension) Rules defines 'grave misconduct' thus :
"The expression 'grave misconduct' includes the communication or disclosure of any secret official Code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923 (19 of 1923) (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the State."
20. In the backdrop of Rules position and the dicta of Honble Apex Court in D. S. Nakara case (supra), the Honble Apex Court interpreted the Rule 9 in D. V. Kapoor Versus Union of India (AIR 1990 SC 1923), which we feel, are applicable for this OA and the same is as follows :
5. It is seen that the President has reserved to himself the right to withhold pension in whole or in part thereof whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the Government employee to the Government subject to the minimum. The condition precedent is that in any departmental enquiry or the judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the. period of his service of the original or on re-employment. The condition precedent thereto is that there should be a finding that the delinquent is guilty of grave misconduct or negligence in the discharge of public duty in office, as defined in Rule 8(5), explanation (b) which is an inclusive definition, i.e. the scope is wide of mark dependent on the facts or circumstances in a given case. Myriad situation may arise depending on the ingenuity with which misconduct or irregularity was. committed. It is not necessary to further probe into the scope and meaning of the words 'grave misconduct or negligence' and under what circumstances the findings in this regard are held proved. It is suffice that charges in the case are that the appellant was guilty of wilful misconduct in not reporting to duty after his transfer from Indian High Commission at London to the -Office of External Affairs Ministry, Government of India, New Delhi. The Inquiry Officer found that though the appellant derelicted his duty to report to duty, it is not wilful for the reasons that he could not move due to his wife's illness and he recommended to sympathetically consider the case of the appellant and the President accepted this finding, but decided to withhold gratuity and payment of pension in consultation with the Union public Service Commission.
6. As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs. 60/-.
7. Rule 9 of the rules empowers the President only to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee's right to pension is a statutory right. The measure of deprivation therefore, must he correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Art. 41 of the Constitution. The impugned order discloses that the President withheld on permanent basis the payment of gratuity in addition to pension. The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to our notice under which, the. President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction.
8. In view of the above facts and law that there is no finding that appellant did commit grave misconduct as charged for, the exercise of the power is clearly illegal and in excess of jurisdiction as the condition precedent, grave misconduct was not proved. Accordingly the appeal is allowed and the impugned order dated November 24, 1981 is quashed but in the circumstances parties are directed to bear their own costs.
21. The cited Rule and judicial pronouncements cast the responsibility on the President to hold the pensioner guilty of grave misconduct or negligence for which the findings in the departmental enquiry must show that the misconduct or negligence is grave.
22. In the context of the present case, we would like to mention that disciplinary action is taken against the Government employees for misconduct, grave misconduct and gravest misconduct. The conduct and disciplinary rules in general is to identify the conduct which are not misconduct and which are misconduct, which is made punishable and then to provide for the punishments which may be imposed for the acts which are misconduct and inconsistent with the expected good conduct. Further, punishments are of two types viz. major and minor. Generally, ordinary misconduct attracts minor penalties and grave/gravest misconduct is visited with major penalty. For example, the Central Civil Services (Conduct) Rules, 1964 contain provisions which pertain to the standards of conduct which government servants (within the meaning of those rules) are to follow, and the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provide the major and minor punishments which may be imposed for misconduct or grave misconduct or gravest misconduct. For example the employees retired or retiring there are Rules under CCS (Pension) Rules, 1972 and instructions issued there under and also under CCS (CCA) Rules. A cut in pension irrespective of its extent or period or percent is a major penalty and in such cases misconduct must be found to be of grave nature. The Conduct Rules and the Rules for punishment are supplemented with Government departmental instructions which elucidate, amplify and provide guidelines regarding the conduct of the employees.
23. On the basis of judicial interpretation of the definition of misconduct and our examination of the facts of the case we do not find the Applicant to have committed any misconduct less to speak of grave misconduct or grave negligence. Our view derives support from the observation of the Honble Hilgh Court in the WP(C) No. 10541-43 of 2006 As already stated, the Tribunal considered earlier the Applicants case for promotion to the post of ADG and the Honble Hilgh Court hearing the Writ filed by the Respondents, while setting aside the Tribunal order directed that the enquiry initiated against the respondent should be completed within 3 months and in case the respondent is exonerated of the charges, he would be given all consequential benefits of promotion with effect from 1.1.2006 and his retiral benefits would be accordingly revised. In para 19 of the judgment Honble High Court observed as follows:-
19. The charges imputed against the respondent are not under challenge in this writ petition. We refrain from expressing any opinion on merits of the charges and allegations except for noticing that the charges prime facie do not appear to be of a very grave or serious nature. The explanation sought to be rendered and the plea of prejudice deserves to be examined by the petitioners. (Emphasis in the nature of boldness is supplied).
24. Taking into consideration the full facts and circumstances of the case; judicial pronouncements on the issues involved in the case; and our analysis on the issues, we come to the considered conclusion that the Applicant has not committed grave misconduct or grave negligence; and thus he has established a strong case in his favour. In the result, the impugned orders of punishment dated 24.10. 2008 and the charge Memorandum and enquiry report are held as arbitrary, and perverse and those are quashed and set aside, we, therefore while allowing the Original Application, direct the Respondents to extend the following consequential benefits to the Applicant:-
(i) to open the deemed sealed cover on the recommendations of the DPC and if he has been found fit for promotion, the same shall be granted with effect from 1.1.2006 or the date on which his junior was promoted to the rank of ADG whichever is earlier;
(ii) consequent to the promotion, he would be entitled to (a) arrears of pay and allowances for the said post of ADG and (b) revised retiral benefits;
(iii) to refund the amount of pension recovered if any; and
(iv) to complete all above actions within a period of 3 months from the date of receipt of a certified copy of this order.
25. In view of the typical nature of the case, we order the respective parties to bear their own costs.
(Dr. Ramesh Chandra Panda) (Justice V. K. Bali) Member (A) Chairman